Taking Away Their Guns in New Orleans:
I have a feeling that this story is going to get a lot of attention at the VC one way or another, so I figure I may as well be the first to raise it:

Water was receding across this flood-beaten city today as local police officers prepared for a mass forced evacuation of the several thousand residents still living here. Authorities also began confiscating firearms from civilians. . . . The city's Police Department and federal law enforcement officers from agencies like the United States Marshals Service will lead the evacuation, Mr. Compass said. Officers will search the city house by house, in both dry and flooded neighborhoods. No one will be allowed to stay, he said. Meanwhile, the city is confiscating firearms from civilians, including legally registered weapons, Mr. Compass said. "Only law enforcement are allowed to have weapons," he said.

Waters were receding across this flood-beaten city today as police officers began confiscating weapons, including legally registered firearms, from civilians in preparation for a mass forced evacuation of the residents still living here.

No civilians in New Orleans will be allowed to carry pistols, shotguns, or other firearms, said P. Edwin Compass, the superintendent of police. "Only law enforcement are allowed to have weapons," he said.

But that order apparently does not apply to the hundreds of security guards whom businesses and some wealthy individuals have hired to protect their property. The guards, who are civilians working for private security firms like Blackwater, are openly carrying M-16's and other assault rifles. Mr. Compass said he was aware of the private guards, but that the police had no plans to make them give up their weapons.

The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.

Is there some implicit emergency exception to the right to bear arms here? On the other hand, doesn't the emergency make the right especially valuable to the rightsholders? Should it matter that the government seems willing to let "businesses and some wealthy individuals" hire to people use arms "to protect their property," but isn't willing to let less wealthy individuals use themselves and their friends and relatives to protect their property (and their bodies and their lives)?

On Monday, I'll have an article on the New Orleans gun confiscation on Reason.com. But there's one part of the story that's too important to wait: the confiscation is plainly illegal. I realize that there are plausible arguments that the house-to-house break-ins and gun-point confiscations violate the Second, Fourth, Fifth and Fourteenth Amendments of the United States Constitution, as well as numerous provisions of the Louisiana Constitution, including the right to arms. Indeed, the confiscations are inconsistent with the Universal Declaration of Human Rights, and with natural law. But my point is much more specific. The particular Louisiana statute which allows emergency controls on firearms also clearly disallows the complete prohibition being imposed by the New Orleans chief of police.

The relevant statute is La. Stat., title 14, § 329.6. It provides:

§329.6. Proclamation of state of emergency; conditions therefor; effect thereof

A. During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the territorial limits of any municipality or parish, or in the event of reasonable apprehension of immediate danger thereof, and upon a finding that the public safety is imperiled thereby, the chief executive officer of any political subdivision or the district judge, district attorney, or the sheriff of any parish of this state, or the public safety director of a municipality, may request the governor to proclaim a state of emergency within any part or all of the territorial limits of such local government. Following such proclamation by the governor, and during the continuance of such state of emergency, the chief law enforcement officer of the political subdivision affected by the proclamation may, in order to protect life and property and to bring the emergency situation under control, promulgate orders affecting any part or all of the territorial limits of the municipality or parish:

(2) Designating specific zones within which the occupancy and use of buildings and the ingress and egress of vehicles and persons shall be prohibited or regulated;

(3) Regulating and closing of places of amusement and assembly;

(4) Prohibiting the sale and distribution of alcoholic beverages;

(5) Prohibiting and controlling the presence of persons on public streets and places;

(6) Regulating and controlling the possession, storage, display, sale, transport and use of firearms, other dangerous weapons and ammunition;

(7) Regulating and controlling the possession, storage, display, sale, transport and use of explosives and flammable materials and liquids, including but not limited to the closing of all wholesale and retail establishments which sell or distribute gasoline and other flammable products;

(8) Regulating and controlling the possession, storage, display, sale, transport and use of sound apparatus, including but not limited to public address systems, bull horns and megaphones.

(9) Prohibiting the sale or offer for sale of goods or services within the designated emergency area for value exceeding the prices ordinarily charged for comparable goods and services in the same market area at, or immediately before, the time of the state of emergency. However, the value received may include reasonable expenses and a charge for any attendant business risk in addition to the cost of the goods and services which necessarily are incurred in procuring the goods and services during the state of emergency, pursuant to the provisions of R.S. 29:701 through 716.

B. Such orders shall be effective from the time and in the manner prescribed in such orders and shall be published as soon as practicable in a newspaper of general circulation in the area affected by such order and transmitted to the radio and television media for publication and broadcast. Such orders shall cease to be in effect five days after their promulgation or upon declaration by the governor that the state of emergency no longer exists, whichever occurs sooner; however, the chief law enforcement officer, with the consent of the governor, may extend the effect of such orders for successive periods of not more than five days each by republication of such orders in the manner hereinabove provided.

C. All orders promulgated pursuant to this section shall be executed in triplicate and shall be filed with the clerk of court of the parish affected and with the secretary of state of this state.

D. During any period during which a state of emergency exists the proclaiming officer may appoint additional peace officers or firemen for temporary service, who need not be in the classified lists of such departments. Such additional persons shall be employed only for the time during which the emergency exists.

E. During the period of the existence of the state of emergency the chief law enforcement officer of the political subdivision may call upon the sheriff, mayor, or other chief executive officer of any other parish or municipality to furnish such law enforcement or fire protection personnel, or both, together with appropriate equipment and apparatus, as may be necessary to preserve the public peace and protect persons and property in the requesting area. Such aid shall be furnished to the chief law enforcement officer requesting it insofar as possible without withdrawing from the political subdivision furnishing such aid the minimum police and fire protection appearing necessary under the circumstances. In such cases when a state of emergency has been declared by the governor pursuant to R.S. 29:724 et seq., all first responders who are members of a state or local office of homeland security and emergency preparedness, including but not limited to medical personnel, emergency medical technicians, persons called to active duty service in the uniformed services of the United States, Louisiana National Guard, Louisiana Guard, Civil Air Patrol, law enforcement and fire protection personnel acting outside the territory of their regular employment shall be considered as performing services within the territory of their regular employment for purposes of compensation, pension, and other rights or benefits to which they may be entitled as incidents of their regular employment. Law enforcement officers acting pursuant to this Section outside the territory of their regular employment have the same authority to enforce the law as when acting within the territory of their own employment.

F. Notwithstanding the provisions of this Section, except in an imminent life threatening situation nothing herein shall restrict any uniformed employee of a licensed private security company, acting within the scope of employment, from entering and remaining in an area where an emergency has been declared. The provisions of this Subsection shall apply if the licensed private security company submits a list of employees and their assignment to be allowed into the area, to the Louisiana State Board of Private Security Examiners, which shall forward the list to the chief law enforcement office of the parish and, if different, the agency in charge of the scene.

First, there are the procedural issues. According to subsection B, emergency orders must be published in a newspaper in the jurisdiction; the Times-Picayune is heroically publishing on-line, but I did not find any evidence, on Friday night, of any publication of the gun confiscation order, whose implementation had already begun on Thursday. According to subsection C, an emergency order must also be filed with the court in the relevant parish (impossible under current conditions), and with the Secretary of State (whose office in Baton Rouge is entirely functional). The Secretary's website gives no indication that a gun confiscation order has been filed.

The more serious issue is the substantive one. The emergency statute creates authority for "prohibiting" some things, and for "regulating" other things. The statute uses "prohibiting" in subsections (A)4, 5, and 9. The statute uses "regulating" in sections (A)3, 6, 7, and 8. Quite clearly the legislature meant to distinguish "prohibiting" authority from "regulating" authority. In the context of the statute, it is not plausible to claim that "prohibiting" means the same as "regulating."

"Prohibiting" authority applies to the sale of alcohol, presence on public streets, and the sale of goods or services at excessive prices. "Regulating" authority applies to firearms, flammable materials, and sound devices (such as megaphones). The "regulating" authority is undoubtedly broad. But it is not equivalent to "prohibiting." The statute does not authorize the New Orleans Police--abetted by the National Guard and the U.S. Marshalls--to break into homes, point guns at people, and confiscate every single private firearm--or every single private bullhorn or private cigarette lighter.

Yet New Orleans' lawless superintendant of police, P. Edwin Compass, has declared, "No one is allowed to be armed. We're going to take all the guns."

The Compass order appears to be plainly illegal. Under section 1983 of the federal Civil Rights law, any government employee who assists in the illegal confiscation would appear to be personally liable to a civil lawsuit. Moreover, higher-ranking officials--such as the National Guard officers who have ordered their troops to participate in the confiscation--would seem to be proper subjects for impeachment or other removal from office (and attendant forfeiture of pensions), depending on the procedures of their particular state.

All police officers, National Guard troops, and U.S. Marshals take an oath to uphold the Constitution and the laws. It appears that carrying out an illegal order to confiscate lawfully-owned firearms from homes would be inconsistent with the oath, contrary to sworn duty, and perhaps a criminal act.

1. The most serious problem is that he reads the power of "regulating and controlling" as equivalent to the power of "prohibiting and controlling." By his theory, the Louisiana legislature could just as well have said "controlling" instead of "prohibiting and controlling" and the legislature still would have granted the power of prohibiting. In an abstract semantic sense, Orin's theory is not implausible. But the Louisiana legislature obviously used the words more precisely; the repeated shifts from "regulating" to "prohibitting" plainly show that the two words are not identical, and that adding "and controlling" after each word does not create identical phrases. If the Louisiana legislature meant to convey the same powers over each of the items in subsection (A), the legislature would have used the same operative words in each subsection.

2. He's right that the statute doesn't specify whether proper publication and filing are necessary for the emergency orders to be lawful. (And as my original post indicated, it's not absolutely certain that proper publication and filing have not occured, although it would be odd for the Louisiana Secretary of State not to post the filing of such an important order.) At least in some circumstances, strict adherence to the provisions of subsections (B) and (C) would be impossible. For example, the Secretary of State's office might be closed; indeed, the courts in Orleans Parish are currently closed. However, if the police chief failed to file the proper notice with the Secretary of State, even when the Secretary of State's office is open, the failure to file indicates, at the least, a disregard on the part of the chief for proper legal procedure.

3. Note subsection (B)'s rule that "Such orders shall be effective from the time and in the manner prescribed in such orders... Such orders shall cease to be in effect five days after their promulgation..." Has the police chief ever promulgated a proper emergency order about firearms? Sending police officers out to confiscate guns is not "promulgation." For the order to be valid, there must, at least, be some form of proper order to the public, not merely to the police. The "promulgation" must, at the least, include a date on which the order goes into effect, because a legal start date is necessary to calculate the automatic expiration date five days thereafter. It seems unlikely that a press conference merely announcing--after the confiscations and break-ins have already begun--the confiscations are taking place, consistutes the promulgation of an "order." The only Louisiana case law definitions of "promulgate" come from election law cases; they rely on the dictionary definition of "promulgate" as "To make known or announce officially and formally to the public." The cases further specify that "promulgate" should be understood in its specific statutory context. E.g., LeCompte v. Board of Sup'rs of Elections of Terrebonne Parish, 331 So.2d 173 (La. App. 1976). And it appears that the chief of police has not complied with any of the statute's specific standards for promulgation (newspaper, parish court, Secretary of State).

4. Violation of a person's state constitutional right to keep and bear arms is a violation of her 14th Amendment rights, and gives rise to a cause of action under section 1983. Kellogg v. City of Gary, 562 N.E.2d 685, 696 (Ind. 1990):

For all of the foregoing reasons, we now hold there is a state created right to bear arms which includes the right to carry a handgun with a license, provided that all of the requirements of the Indiana Firearms Act are met. This right is protected by the Due Process Clause of the Fourteenth Amendment and is both a property and liberty interest for purposes of § 1983.

If the confiscation of firearms is illegal under Louisiana statute, then the confiscation is very likely a violation of the right to arms under the Louisiana constitution. Moreover, pursuant to United States v. Emerson, the Second Amendment is recognized as an individual right in the Fifth Circuit, which includes Louisiana. The Second Amendment, even if unincorporated, would be the basis of a section 1983 claim against any federal employees involved in the confiscation. Also, the warrantless entry into homes and illegal confiscation of property might give rise to section 1983 claims premised on the Fourth and Fifth Amendments.

5. In response to some of the issues raised by comments on related posts...the President of the United States probably has the power, as Commander in Chief, to order the confiscation of firearms from areas in actual rebellion, following a proclamation of martial law. Martial law has not been declared. The "standard of scrutiny" question for the deprivation of state or federal constitutional rights is irrelevant here; the question would be relevant if there were a challenge to the constitutionality of the Louisiana emergency statute. When the police chief exercises power which he was never granted by law, then his act is ultra vires, and necessarily illegal.

The New Orleans Gun Confiscation -- A Response to David Kopel:
In a provocative post below, my co-blogger David Kopel argues that the confiscation of firearms in New Orleans is "blatantly illegal" under the Louisiana statute governing states of emergency, 14 La. Stat. § 329.6. He contends that the state, local, and federal officers have committed "perhaps a criminal act" by participating in the confiscation, and that they can be sued for this under 42 U.S.C. 1983 or perhaps impeached. (Fortunately, David does not advocate that the officers should be "shot on sight," so I suppose I should count my blessings.) I disagree with David's legal analysis, and thought it might be useful to explain why I disagree.

The core of David's argument hinges on the meaning of the power to "regulat[e]" the possession of firearms. The statute states that officials are empowered to make orders "[r]egulating and controlling the possession, storage, display, sale, transport and use of firearms, other dangerous weapons and ammunition[.]" David argues that the confiscation of firearms is not within this authority:

The emergency statute creates authority for "prohibiting" some things, and for "regulating" other things. The statute uses "prohibiting" in subsections (A)4, 5, and 9. The statute uses "regulating" in sections (A)3, 6, 7, and 8. Quite clearly the legislature meant to distinguish "prohibiting" authority from "regulating" authority. In the context of the statute, it is not plausible to claim that "prohibiting" means the same as "regulating." "Prohibiting" authority applies to the sale of alcohol, presence on public streets, and the sale of goods or services at excessive prices. "Regulating" authority applies to firearms, flammable materials, and sound devices (such as megaphones). The "regulating" authority is undoubtedly broad. But it is not equivalent to "prohibiting."

The problem with this analysis is that the statute creates more than the power to "regulat[e]" the possession of fireams. It expressly creates the power to "regulat[e]" possession and the power to "control the possession" of firearms. Even if the power to regulate does not encompass the power to prohibit — a conclusion that seems plausible but not obvious, especially in the absence of any cases construing these terms — an order that individuals must give up possession of their firearms does seem to me to fall within the plain meaning of "controlling the possession" of firearms. It's not free of doubt, I think. But on balance, it seems to me that "controlling the possession" of an item in a state of emergency would include the authority for the state to take possession of the item. That is particularly likely because the statute grants the power to control possession in addition to the power to regulate possession; presumably the legislature intended control to be something beyond mere regulation.

Let's move on to the procedural question. David argues that any confiscation order cannot be effective because particular procedural requirements have not been met:

According to subsection B, emergency orders must be published in a newspaper in the jurisdiction; the Times-Picayune is heroically publishing on-line, but I did not find any evidence, on Friday night, of any publication of the gun confiscation order, whose implementation had already begun on Thursday. According to subsection C, an emergency order must also be filed with the court in the relevant parish (impossible under current conditions), and with the Secretary of State (whose office in Baton Rouge is entirely functional). The Secretary's website gives no indication that a gun confiscation order has been filed.

I have a few problems with this analysis. First, the statute says nothing about the legality of emergency orders being contingent on the satisfaction of these procedural requirements. Second, the point about publishing the orders in a newspaper only dictates that the orders should be "published as soon as practicable in a newspaper of general circulation in the area." Given that the city is mostly under water and has no power, and thus no Internet access, I don't think there are any "newspapers of general circulation in the area" right now. As for Subsection C, the statute apparently does not say when the order must be filed with the Secretary of State. I'm not sure why the failure to file it so far (assuming it has not been filed) forbids the order from being effective now. Indeed, it would be a bit odd if the law governing emergency orders required those orders to be filed first with the Secretary of State before the emergency orders became effective. It's possible, but I'm not seeing it in the text of the statute.

Finally, my understanding is that 42 U.S.C. 1983 is inapplicable. That law provides a private right of action against state officials for violating federal rights, not a private right of action against officials for violating state rights. See, e.g., Maine v. Thiboutot, 448 U.S. 1 (1980).

Importantly, I have no sense of the remaining legal issues that David mentions. David suggests in his post that the confiscation may also violate a bunch of other laws, and I am certainly open to those arguments. Nor am I eager to defend the confiscation order on ground of policy: I don't know enough about the facts to have a good sense of whether the order was appropriate. But with those caveats made, I don't think I agree that the confiscation order violates 14 La. Stat. § 329.6. That's my tentative sense of the law, anyway. As always, comments and corrections welcome.

UPDATE: I made minor substantive amendments to this post shortly after posting it, as I realized I misread one aspect of David's post.

Regulating, Prohibiting, and Controlling:
In an update to his post on the legality of the confiscation of firearms in New Orleans, David Kopel takes issue with my view that "controlling the possession" of firearms includes the power to take the possession of firearms. He writes:

The most serious problem is that [Kerr] reads the power of "regulating and controlling" as equivalent to the power of "prohibiting and controlling." By his theory, the Louisiana legislature could just as well have said "controlling" instead of "prohibiting and controlling" and the legislature still would have granted the power of prohibiting. In an abstract semantic sense, Orin's theory is not implausible. But the Louisiana legislature obviously used the words more precisely; the repeated shifts from "regulating" to "prohibiting" plainly show that the two words are not identical, and that adding "and controlling" after each word does not create identical phrases. If the Louisiana legislature meant to convey the same powers over each of the items in subsection (A), the legislature would have used the same operative words in each subsection.

I don't think that's right. The lines between the different key phrases used in the statute aren't clear, but I don't think David's reading is the most natural interpretation of the state-of-emergency statute.

Here's my thinking. The statute we are discussing, La. Stat., title 14, § 329.6, is located in the Louisiana Code's section on criminal laws. Thus, refusal to obey a valid order during a state of emergency can lead to criminal charges for failure to obey the order. See, e.g., State v. Gauthier, 263 La. 678, 269 So.2d 204 (1972). Given that the power to create emergency orders is the power to create enforceable criminal laws, I think the most natural reading of the power to "prohibit" the possession of an item is that it refers to the power to make possession of the item a criminal offense. That is, it is the power to arrest people and charge them with crimes for possessing the item prohibited.

As fas as I can tell, this isn't what happened in New Orleans. There was no confiscation order prohibiting the possession of guns, which would have permitted the police to arrest people with guns and charge them with the crime of gun possession. Rather, the state officials were ordering individuals to hand over possession of their guns to the police. Whether this was a good idea or the beginning of the New World Order, as a matter of textual plain meaning it seems more an effort to "control the possession" of firearms than an effort to "prohibit the possession" of firearms.

At the risk of repeating myself, my point is narrow. I don't have particular views on whether the confiscation order was an appropriate step, and I am quite open to arguments that it may have violated other laws. (I am particularly eager to hear David's argument for why it is inconsistent with the Universal Declaration of Human Rights.) But it seems to me that we shouldn't let our substantive views of the wisdom of the confiscation order cloud the legal question of whether it violated Louisiana law.

If the New Orleans police chief followed the advice of lawyers as conscientious and creative as Orin Kerr, New Orleans would be a better place. And our discussion of the home invasions and gun confiscation could be more legally precise, because the police chief would actually have promulgated an order, and we could discuss the legal implications of the particular order.

However, we evidently have no order, and hence we have no legal justification for the home invasions and gun thefts. Even if you read the power of "controlling" as expansively as does Orin, the power of controlling is created, pursuant to the statute, only after the chief of police does "promulgate orders." We can debate the scope of lawful "orders", but when there are no lawful "orders", the emergency powers of section 329.6 have never been invoked.

Now let us consider the effects of some orders, under the counter-factual hypothetical that lawful orders had been issued. Orin's theory is that the power of "controlling" includes the power of seizing all firearms (even though the seizures seem very much like "prohibiting"). So Orin's theory requires some way to distinguish "controlling" (which in his usage includes the power to completely deprive everyone of the posssession of firearms, megaphones, and flammable material such as gasoline or matches) from "prohibiting."

His theory is that "prohibiting" means the power to define a criminal offense (predicated on violation of an emergency order) whereas "controlling" does not. So let's look at his theory in practical application. Let's imagine that the statute did confer the power of "prohibitting" guns, and that the chief of police did issue a prohibitory order:

Chief: I hereby announce an order, and am filing copies of my order with the Secretary of State. Everyone in New Orleans who is not a security guard or police is prohibited to to have a gun. I further declare the police may break into anyone's home without a warrant, to enforce my order.

(one hour later)

Police officer: Mister citizen, I have just kicked down your door, and I see that you have a gun. You are under arrest for defying an emergency order issued pursuant to title 14, section 329.6.

Pursuant to Orin's theory, the above scenario cannot take place, because the police chief does not have the authority to issue an order "prohibiting" guns. Such a scenario could take place for items such as alcohol, which the statute does authorize prohibiting.

Now let's consider Orin's theory for how a "controlling" order works.

Chief: I hereby announce an order, and am filing copies of my order with the Secretary of State. Everyone in New Orleans who is not a security guard or police has to surrender their guns to the police when the police tell them to. I further declare the police may break into anyone's home without a warrant, to enforce my order.

(one hour later)

Police officer: Mister citizen, I have just kicked down your door, and I see that you have a gun. You are not prohibited from having a gun. However, I am controlling your gun by taking it away from you. Give me your gun.

Citizen: No.

Police officer: I am placing you under arrest for defying an emergency order issued pursuant to title 14, section 329.6.

There are some small distinctions between the first scenario and the second scenario, so Orin's theory is not impossible, as a matter of pure logic. Indeed, his theory may be the best defense that chief Compass and everyone who cooperates in his home invasion and and gun confiscation program will have, if they are sued.

However, I suggest that the distinctions between scenario 1 and scenario 2 are distinctions without a difference. The practical difference between the two scenaorios (and the difference between Orin's non-prohibitory "controlling" and actual prohibition) is so trivial that it is unreasonable to conclude that the legislature chose such different words to achieve such nearly identical results. Indeed, I suggest that the the only reasonable way to read a statute which authorizes "regulating and controlling" objects X, Y, Z, and authorizes "prohibiting and controlling" objects A, B, and C, is that the chief of police is not granted the power to invade homes and confiscate every single X, Y, and Z.

But of course all the above discussion is premised on the hypothesis that chief Compass is obeying the law. If he were acting pursuant to section 329.6, then his emergency order can last only five days. The gun confiscations having begun last Thursday, the police should begin returning guns to their lawful owners next Tuesday.

Am emergency order can be renewed for five-days periods. Are we to presume that the home invasions and gun seizures on every fifth day constitute the "promulgation" of a new "order" which is "controlling" (but not "prohibiting") the possession of firearms?

Appendix One: One final anecdote, for those readers who think there is at least a tiny possibility that the NO PD is applying 329.6 with the care and precision which Orin brings to his analysis of the statute. In the spring of 2004, I attended a Louisiana State House of Represenatives committee hearing on several gun bills. Among the people who testified was an officer representing the NO PD. Among the proposed bills was one which would prohibit gun carrying within a certain distance of a parade. A representative asked the NO PD spokesman (who was a uniformed police officer) how the proposed ban would affect people who had concealed handgun permits. The NO PD spokesman replied that there was no problem, since the NO PD did not issue handgun carry permits.

The statement visibly shocked several committee members. One of them explained to the NO PD officer that Louisiana has a law by which all law-abiding adults are entitled to concealed handgun carry permit. In fact, the law had been enacted eight years before, in 1996, and the law took away handgun carry licensing from the local police departments, and gave it to the Department of Public Safety and Corrections.

Perhaps Police Superintendant Compass actually is conscientious about respect for constitutional rights, including the right to bear arms, in Louisiana, and perhaps Superintendant Compass just had the bad luck of picking a legislative lobbyist on gun policy who knew less about Louisiana gun law than would someone who read a newspaper a couple times a week. Or perhaps Superintendant Compass has not even trained his officers to understand the most elemental rules of lawful gun carrying in the state of Louisiana.

And perhaps the government-sponsored home invasions and taking of property which are taking place in New Orleans right now have nothing to do with law (and hence nothing to do with the legal issues that Orin and I have been debating) but are simply the exercise of raw power which has suddenly found itself freed from the checks and balances of a functioning judiciary and other restraints.
Appendix Two: For anyone wondering how the NO PD/National Guard/US Marshals actions stack up against the (probably not legally binding in the U.S.) principles of the Universal Declaration of Human Rights, see articles 3 (security of the person); 12 (arbitrary interference with privacy, family, home); and 17(2) ("No one shall be arbitrarily deprived of his property.")

1. David, where did you get the idea that the police are breaking into homes to look for guns? I haven't seen any news reports that say this, but you have mentioned this repeatedly. Can you point me to the news reports of this happening? Or is this just supposed to be a hypothetical? The police do seem to be knocking on doors, and maybe they have broken into houses, too. If they have broken into houses, they necessarily must have done so without a warrant: the courts are flooded and all the judges have fled town, so there are no warrants that could possibly be obtained. But I haven't seen anything about breaking into homes to take guns.

2. On the more substantive question, David's argument seems to be that there is an implicit nontextual limitation on the power to "control the possession" of firearms: specifically, that this power cannot be construed in a way that can have functionally similar effects to the power the government would have if the statute permitted the government to "prohibit the possession" of firearms. This just seems like a big stretch to me: I just don't see the textual hook for such a reading. For example, David's reading would seem to make the power to "control the possession" a nullity. It would make the power to control the possession identical to the power to regulate the possession, which would seem to violate his own interpretive principles that every word must be treated as having a very distinct meaning. Indeed, I don't know what the power to regulate possession could mean under David's view, as someone who refused to follow the regulation could be arrested for his possession, which would once again be the functional equivalent of prohibiting possession. In any event, perhaps David and I will just have to agree to disagree on this point.

1. Source for home invasions by police to carry out gun confiscation: ABC World News tonight, Sept. 8, 2005 (Link courtesy of MusingsOftheGeekWithA.45, Sept. 9.) BTW, my Reason article, published on Saturday, has a dead link to another site with the same video; this link still works, as of early Sept. 11.

2. The statute confers the power of "regulating and controlling" the "possession, storage, display, sale, transport and use of firearms." Orin asks how the power to of "regulating and controlling" the "possession" of firearms can exist if it does not include the power to confiscate. Here's one example of a lawful order "regulating and controlling" without prohibiting: "For five days, starting today, no one may possess a firearm in the following public places:...within 2,000 feet of a helicopter landing pad. Persons who violate this order may be arrested." I agree with Orin that the power of "controlling" is broader than the already-broad power of "regulating." I just disagree that either power goes so far as to include the distinct power of completely "prohibiting."